2007 PLP 1233 (CLC)

MUZAFFAR ALI, J.

This revision has been preferred against the order, dated 13-6-2006, passed by the learned Election Tribunal Ghizer, whereby the learned Tribunal has dismissed, the Election petition as withdrawn. We heard the learned counsel for the parties. The learned counsel for the respondents, at the very outset of the hearing objected, the maintainability of the present revision with the force of a decision given by the learned brother Judge Mr. Sahib Khan sitting in this Betich, and stated that, the cited judgment titled Manzoor Hussain son of Baqar Shah, resident of Jalalabad, Tehsil and District Gilgit v. Shahid Ali son of Nasir Hussain, resident of Haramosh, Tehsil, Gilgit, and 11 others, the learned brother has held, that, no revision or appeal is available before this Court against any order passed by the learned Tribunal, under the Northern Areas Local Government Election Rules and Order, 1979 (amended upto 1991), (herein after called the Rules and Order) as the Rules and the Order do not provide any revision or appeal before this Court. The learned counsel asked, to meet the above point, he instead of pressing the maintainability of the revision petition, frankly solicited the Court to treat the same as writ petition with, the reasons that, the impugned order has been passed by the learned Tribunal in violation of Rule 57 sub-rule (2), which is mandatory in its nature, as such impugned order is without jurisdiction and void ab initio, but there is no any other remedy available to the petitioner to assail the same, if this revision petition is not allowed to be converted into writ petition. The learned counsel objected to convert this revision petition into writ. We, keeping in view the legal sanction of the point raised by the learned counsel for the petitioner, acceded the request and treated the revision petition as writ. On the merits of the case, the learned counsel for the petitioner vehemently pressed that, the learned Tribunal has allowed the withdrawal of the application in violation of the mandatory provision of the special law, as such the impugned order is void ab inito and without jurisdiction, and referred Rule 57(2) of the rules. The bare reading of the sub-Rule (2) (supra), reveals that, the procedure for entertaining a withdrawal application in election petition is much different than that of procedure given in C.P.C. for unconditional withdrawal of the suits. Under Order XXIII, read with Order II, rule 2, sub-rule (1) of C.P.C. a plaintiff can Withdraw his suit or can relinquish any portion of his claim without seeking any permission from the Court, but he becomes debarred from instituting fresh suit on the same subject or cause of action or the portion of the claim, unless sought permission of the Court. The procedure as provided in Rule 57 sub-rule (2) purports that (a) the leave of the Tribunal is required to withdraw the election petition, even if the petitioner has no desire to file fresh petition, (b) where an application for leave to withdraw is submitted, the Tribunal is required to issue notice thereof to the other parties, even if their A attendance has been procured to contest the election petition, (c) the Tribunal, before granting leave to withdraw the election petition, shall make itself satisfy about any bargaining or agreement which might cause the withdrawal, and if it appears so to the Tribunal the Tribunal shall not grant leave to withdraw the election petition, (d) the Tribunal may impose cost if the same is allowed, (e) the Tribunal has to issue notice of allowing or disallowing of withdrawal on the other parties and (f) within fourteen days next following the notice, any person who might himself have been a petitioner may apply to the Tribunal for leave to be substituted as a petitioner and (g) the person may be so substituted on such terms as the Tribunal may decide and may continue the proceedings, but subject to the compliance of the person with the provisions of the Rules as to security of cost. The learned Election Tribunal has not complied with the above mandatory pre-requisites of sub-rule (2)' of the Rule 57 and has acted as provided by Civil Procedure Code while deciding the application for withdrawal of the petition, forgetting the fact that he acts as Election Tribunal under special law relating to election disputes and going through the election laws was incumbent upon him, but failed, therefore, impugned order is without jurisdiction and nullity in the eyes of law. The learned counsel for the respondent No.1 while arguing the case, could not deny the above legal proposition and the learned Advocate-General for the respondents 2 and 3 frankly conceded the same. The outcome of the above legal discussion is that, the impugned order is set aside and the case is remitted back to the Election Tribunal concerned to deal the withdrawal application, after complying with the sub-Rule (2) of rule 57 of the election laws. He is also directed to comply with the directives of this Court given in the operative part of the judgment titled Mst. Zubeda Bibi wife of Ali Jan v. Election Commissioner, N.As. Gilgit etc. dated 4-5-2006, in the case in hand, as this Court has seriously observed that, the learned Tribunal has ignored the same while passing the impugned order. S.A.K./21/Gilt. Case remanded.